Standing Committee B

[Mr. Joe Bentonin the Chair]

Clause 3

Meaning of relevant duty of care

Amendment moved [this day]: No. 92, in page 2, line 29, after vehicle, insert , substance hazardous to health,.[Tony Lloyd.]

Tony Lloyd: I hope, Mr. Benton, that you will give me some leeway and consider what I say now not simply to be a repetition, but a reminder.
Amendment No.92 is straightforward. The purpose of clause 3(4) is to delimit construction or maintenance operations and members of the Committee will see a whole series of activities that are caught by this part of the Bill. What amendment No.92 seeks to do is insert the words substance hazardous to health at page 2, line 29 after vehicle. I do not wish to dwell on it, but it is a matter of practical fact that substances hazardous to health are those substances that can in some circumstances cause injury, but in some circumstances can kill. It is important to recognise that in the context of the Bill we are talking about those circumstances where substances hazardous to health were sufficient to have resulted in death.
The purpose of the amendment is simply to add words because at the moment it is not obvious that among the activities listed, the failure to operate properly and in a safe manner consistent with health protection in the use of hazardous substances is covered by this part of the relevant duty of care. The relevant duty of care must contain reference to the question of substances hazardous to health. I would like the Ministers assuranceit would be helpful in terms of the way in which the legislation is interpretedthat it is implicit in the Bill that substances hazardous to health are included. Alternatively, if he is unable to do that, will he accept that there may be a need to amend the Bill? Obviously, I will listen to the Ministers words carefully and I hope we can make it clear that there is no intent that these substances should be out of the scope of the Bill.

Ian Stewart: In support of my hon. Friend, earlier in the sitting this morning the hon. Member for Beaconsfield (Mr. Grieve) and other hon. Members talked about the difference in breadth in terms of the Health and Safety at Work, etc. Act 1974. Part I section 2(2)(b) of that Act talks about the use, handling, storage and transport of articles and substances. That clearly shows why my hon. Friend the Member for Manchester, Central (Tony Lloyd) has tabled this amendment. If the Minister is unable to accept the amendment, the words that he says as recorded in the Official Report will become all important.

Dominic Grieve: I was about to intervene on the hon. Gentleman, but as he has finished I will put in my pennyworth.
The Health and Safety at Work, etc. Act 1974 was drafted in the 1970s according to what I regard as rather old-fashioned principles of drafting compared with those we have now; there was a tendency to dot the is and cross the ts. Therefore, the amendment strikes me as being perfectly reasonable. That said, my reading is that a hazardous substance would be covered by the other thing in subsection (1)(a)(iv). However, it is a sign of changes in the way we draft legislation that nowadays we put in far more assumptions, rather than including every possible item.

Ian Stewart: Eminent as the hon. Gentleman is, he is not the Minister, no matter what he thinks. It is the Minister whom we want to hear.

Dominic Grieve: In this context I am pleased not to be the MinisterI shall leave him to answer for himself. I can only give the hon. Gentleman the benefit of my thoughts in so far as I have considered the amendment and wondered whether there was any merit in what he and the hon. Member for Manchester, Central have said.

Gerry Sutcliffe: I welcome you to this afternoons proceedings, Mr. Benton. I also thank my hon. Friends the Members for Eccles (Ian Stewart) and for Manchester, Central for their support for the amendment, which is important for the reasons given. It is important that the Bill should cover the sort of activities that have been referred to and I am pleased that they are on the record. I am also grateful for the legal advice that the hon. Member for Beaconsfield gave.
I am satisfied that the substances that my hon. Friend the Member for Manchester, Central talked about are properly covered by the Bill as it stands. Quite rightly, subsection (1)(c)(iv) already refers to
the use or keeping by the organisation of any plant, vehicle or other thing.
The last term is deliberately intended to be very broad. It is certainly broad enough to cover the sorts of substances that my hon. Friend is concerned about. As the hon. Member for Beaconsfield said, the reason for including the term other thing, which is not prescriptive, is that additional wording could start debates about whether the intention was to exclude substances that are not inherently hazardous to health, or arguments about whether a substance is a hazard to health or simply dangerous. It is important that the offence extends to the use of drugs in hospitals and the storage of petrol.
I fully support the sentiments of my hon. Friend in tabling the amendment. My reply is intended in no way to diminish the importance of the topic or the need to ensure that the Bill extends to hazardous substances. However, I am satisfied that they are already properly covered and that we would not improve the Bill by including a specific reference. I hope that on that basis my hon. Friend is happy to withdraw the amendment.

Tony Lloyd: I am reassured by the Committees legal adviser and even more so by the Minister. It was important that he placed his words on the record. I am satisfied in any case that hazardous substances were probably covered but, as the hon. Member for Beaconsfield pointed out, there was a time when things would automatically have been included beyond peradventure, whereas we now perhaps leave a little more to interpretation. I can understand arguments for both approaches, but what is important is that the intention of Parliament has been made clear by the Ministers statement, so that it is clear in any future interpretation, and usable in any proceedings, that the many substances that are hazardous to health are covered by the Bill. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Dominic Grieve: I beg to move amendment No. 135, in page 2, line 32, leave out subsection (3).
This is a probing amendment, although behind the probe there is a certain amount of wondering on my part about what the Government have done. Subsection (3) establishes that although corporations will be tried by jury for any allegation of corporate manslaughter, it seems that the trial will fall into two distinct parts. It will remain within the jurys province to decide whether there has been a breach of any duty of care, but the Government have spelt out that the decision of whether a duty of care is owed to a particular individual by a corporation is a question of law. I do not disagree with thatit is quite clear.
However, subsection (3) also states:
The judge must make any findings of fact necessary to decide that question.
The Minister will correct me if I am wrong, but this seems to be a bit of a novelty in our criminal law. I would normally expect the judge in a criminal trial to determine the scope of the duty of care as a question of law and to put that to the jury in the summing-up as part of a twofold process, saying, Members of the jury, you have first of all to decide whether the facts amount to owing a duty of care. If you are satisfied that they do, you must decide whether that duty has been breached. The judge would guide them on the law and explain that a decision on the law was for him. However, the final decision would still lie with the jury, which would decide if the facts, as described and given to them by the judge, amounted to a duty of care in the first place.
The Government have gone for a completely new system. I am not necessarily against that. I have a lot of confidence in jury trial. However, removing this aspect of a jurys role in deciding the primary facts on which duty of care might be established is a bit of a novelty. I am also puzzled as to how it will be done in practice. How will the trial be split up so that the twofold process takes place? Presumably, the prosecution will present its case to the judge and there will be an opportunity for the defence counsel to submit that there is no case to answer at half-time. However, that might not be enough and the defence case might have to be presented; then the judge would have to rule before he summed up to the jury as to whether he had decided that there was a duty of care in existence in the case in question and what the facts were upon which he made that decision. I assume that the Government intend the courts to adopt that procedure, but I should be grateful if the Minister explained how this will work out in practice, because there is a certain novelty about it.
If the jury will not be the arbiter of whether the facts are such that a duty of care is owedunder the judges guidance on the lawI am worried that we may risk juries reaching conclusions on whether there has been a breach of duty of care that are incompatible with the facts on which the judge has decided that the duty of care exists in the first place. We need to think about that.
On the whole, our criminal courts have moved away from the principle that judges can direct juries to convict. The Minister may be familiar with, or may remember, the Ponting case. Mr. Ponting admitted to a national newspaper various facts about disclosing documents that were subject to the Official Secrets Act. Frankly, the facts that he admitted were the offence, and he as good as admitted the offence by admitting to the set of facts. I recollect that the judge indicated to prosecution and defence counsel that he was minded to give the jury a direction to convict Mr. Ponting. The prosecution quickly rowed away from that idea, because it thought that it was in rather dangerous waters. As a result, Mr. Ponting was, rather surprisingly, acquitted, because the jury took a robust and wholly individual view of its own about whether he was guilty.
Perhaps in the circumstances about which we are talking such a problem will not arise in quite the same way. The judge will say, I tell you as a matter of law that a duty of care exists in this case. Therefore, all you have to decide is whether it has been breached. However, although that sounds simple, one could face problems if the jury, having listened to all the evidence, were not satisfied that a duty of care existed at all, notwithstanding whatever the judge might or might not tell them. One may end up with difficulties with a two-stage process.
I want to make it clear to the Minister that I wish to hear more from him about how the Government envisage that working, what discussions they have had with the judiciary about how it would operate in practice and what thought has been given to the practical difficulties of a two-stage approach.

Tony Lloyd: I may be about to talk nonsense, but one of my worries about the duty of care is that it is often breached when an illegality is involved in the process. Let us consider the cockle pickers accident. If illegal immigrants were working illegally in that framework, would there be a breach of the duty of care? Would it be a defence in the case of corporate manslaughter to argue that there was no duty of care, so even though materially the same company in the same circumstances would clearly have been guilty of corporate manslaughter, it could avoid the charge and the penalty? What concerns me is leaving a big hole in legislation affecting the most vulnerable people in our society.

Dominic Grieve: The hon. Gentleman describes a hazardous area in which lawyers fear to tread. On the face of it, duties that are specified in clause 3under Meaning of relevant duty of careincluding, in particular, the definitions of the law of negligence at the top of page 3 of the Bill cover a duty to people who may be acting unlawfully themselves. I shall give an example. I might have cited what I am about to describe earlier, in which case I ask the Committees indulgence if I repeat myself.
I refer to the case of young children who routinely trespass through a service yard where lorries are manoeuvring. They are undoubtedly there as trespassers. Notices are frequently put up saying that they should not come into the yard and attempts are made to fence the yard to prevent children from using it as a short cut. I had a similar case, although it involved a little old lady who routinely used a marshalling yard as a short cut to the shops.
The route was used frequently, so the wire was often cut. Having simply tried to fence it off, the company concerned took no further steps to have regard to the fact that, when lorries were manoeuvring, occasionally people were in the yard who should not have been there. The situation results in a reversing lorry running over a child. My view is that, notwithstanding the duties of care that are outlined or restricted, that case would be capable of being prosecuted as corporate manslaughter if it could be shown that there was a serious failure to have regard to a clear and obvious risk that arose from the unlawful activity. I give that as an example to the hon. Gentleman, and I do not believe that that is something that could be prevented.
Matters cut both ways. Undoubtedly, establishing whether or not a duty of care exists is very much a matter for a trained lawyer, but the trouble remains that the decision of juries will, I am sure, be influenced about whether there is a breach of the duty of care by their attitude and whether they regard it as common sense for there to have been a duty of care in the first place. As the Ponting case highlighted, whatever judges may tell juries in their summing up that the law says that there was a duty of care in certain cases, it would be idle to pretend that that may not have an impact on the way in which juries view cases. When dealing with people who are engaging in unlawful practices, juries may subconsciously or consciously have regard to that when reaching their decisions. That is why I am so interested in hearing from the Minister about how the Government think that the system will work in practice. I have a very slight niggle that it may prove to be a little more complicated than has been realised. Once a judge starts removing decisions from the jury, there is the potential for a clash between the two, which would lead to Court of Appeal hearings and all sorts of difficulties. I would like to see whether we can prevent that.

Gerry Sutcliffe: As the hon. Gentleman said, amendment No. 135 would remove the requirement for the judge to decide whether a duty of care is owed. I am no lawyer, and, like the hon. Member for Kingston and Surbiton (Mr. Davey), neither do I aspire to be one, but I do not wish to be disrespectful to lawyers. [Interruption.] On this occasion I do not wish to be disrespectful to them.
For the benefit of the Committee, I shall go through this information as slowly as possible, as it contains my legal advice from the Home Office. If there is a need to challenge it, I am sure that the hon. Member for Beaconsfield will do that.
I understand that in a handful of gross negligence manslaughter cases involving individuals, the point relating to the judges involvement has been considered. The position generally seems to be that it is for the judge to decide whether, legally, a duty of care could exist in the case, and for the jury to decide if one arose. In at least one case, the judge decided the matter and directed the jury that a duty existed as a matter of law.
To step back for a moment, I should emphasise that we doubt that this will be a specific issue for many prosecutions. The vast majority of the duties of care relevant to the offence are well establishedfor example, the employers duty of care to employeesso resolving the question of whether a duty was owed will be relatively straightforward. If there is doubt, the categories in the Bill will assist in determining whether a case should be brought, so the question will be more complex in only a small number of cases.
Generally, the duties that organisations owe will be considered and decided in the civil courts, where it will be the judge who settles the issue, as juries are not involved in civil negligence actions. That means that the question will primarily be a legal one, decided by reference to case law. We think that it is more sensible to require the judge to decide, in the same way that he would decide any other matter of law in the case. It also means that there will be consistency between civil and criminal law in this area, and that is important. Duty of care forms an important part of the regulatory framework for organisations, and it would not be sensible for organisations to owe a different set of duties for the purpose of this offence.
That approach will not affect the position in manslaughter cases involving individuals, where the question will remain with the jury. In those cases, the jury will decide whether a duty is owed between two or more individuals. In some cases, the decision will be straightforwardfor example, the duties that parents owe to their childrenbut if the position is more complicated, the question will still be one of whether a particular individual owed a duty of care to another; for example, whether one drug user owes another a duty in relation to drug use.
Subject to the judge first deciding whether the facts are capable of giving rise to a duty, a jury of ordinary people will be in a strong position to assess the situation. The question of consistency with the civil law is less important because negligence actions against individuals are less common and duties of care do not provide the same regulatory framework for people as they do for organisations. That is the basis of the position so far.
The hon. Member for Beaconsfield and my hon. Friend the Member for Manchester, Central raised various issues. My hon. Friends concern is that cases such as that of the cockle pickers might not be covered because the Bill links the new offence to owing a duty of care in the civil law of negligence, and liability can be precluded in the civil law between people engaged in criminal activity. We considered that civil law principle, which is known as ex turpi causa non oritur actioor something near thatwhen responding to the joint report of the Home Affairs and Work and Pensions Committees. Our view is that the doctrine, which operates as a defence to a civil claim, would not prevent a duty of care from being owed for the purposes of the new offence.
The Court of Appeal in Wacker decided that the doctrine had no application to manslaughter even though the necessary ingredient of gross negligence manslaughter existed, but that there had been a breach in the duty of care under the ordinary principles of negligence. We are satisfied that that would be no major obstacle in such cases.
The hon. Member for Beaconsfield asked what discussions there had been with the judiciary about the proposals. There has been extensive consultation on all aspects of the Bill, and this one in particular. Sir Igor Judge gave evidence to the scrutiny Committee and I know that judges have raised the matter with us.
The hon. Gentleman asked how splitting the role of the judge and jury will work in practice. As he knows, the Bill contains no special provision for that, and we are satisfied that none is required. Criminal proceedings will often involve questions that need to be decided by the judge as a matter of law and this matter will fall to be decided in the same way. It is worth remembering that in the majority of cases whether or not a duty existed would be a straightforward matterfor example, when the person killed was an employee or a train passenger. In cases of uncertainty a defendant can apply before the case reaches the court for it to be dismissed on the grounds that there is no case to answer. If it is not dealt with then, it can be raised as a preliminary point at the start of the proceedings in the way that points of law generally can be raised for the judge to consider. In the vast majority of cases, it should be straightforward. I hope that that helps the hon. Gentleman, and that he will be happy and content to withdraw his amendment.

Dominic Grieve: I am grateful to the Minister, and he has gone a long way towards reassuring me. I certainly did not intend to press the matter to a vote. I shall go away and reflect on whether I am completely happy and if not I shall come back to the matter on Report. I should make it quite clear that this is a matter of practicality. It is not some big issue of principle for me, much as I like jury trial, and as long at the jury has the final say on whether there has been a breach I am content with the slightly unusual role of the judge. I was interested to hear, and was not aware, that a judge had on at least one occasion usurped the jurys role in a gross negligence manslaughter prosecution by giving it direction of law as opposed to telling it what the law was and hinting at the probable outcome of what it should decide. That is not improper in itself. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 3 ordered to stand part of the Bill.

Clause 4

Public policy decisions, exclusively public functions and statutory

inspections

Dominic Grieve: I beg to move amendment No. 43, in page 3, line 22, after second a, insert ministerial.

Joe Benton: With this it will be convenient to discuss amendment No. 44, in page 3, line 37, at end insert
ministerial means a decision made by one or more Ministers of HM Government, Scottish Ministers, Welsh Ministers or Northern Ireland Ministers;.

Dominic Grieve: We now come to rather an important and potentially controversial bit of the Bill, although again I should make it clear that these are probing amendments and I am interested in trying to tease out exactly what the Government intend so that we can decide whether we think that they are going far enough or too far.
Amendment No. 43 would exclude only ministerial decisions from the public policy decisions that might be made by officials, and amendment No. 44 goes on to define a ministerial decision. Clearly, one of the issues that has given rise to some anxiety in the course of the passage of the Bill is whether it is giving the Government an easy time and whether they have wriggled off the hook of their potential responsibility for corporate manslaughter by limiting the way in which the duty of care operates in clause four.
I will read the clause again, because it is important to have it in context:
Any duty of care owed by a public authority in respect of a decision as to matters of public policy (including in particular the allocation of public resources or the weighing of competing public interests) is not a relevant duty of care.
At what point does a decision become a matter of public policy rather than a matter of, for instance, management in the allocation of resources? That is what we need to concentrate on.
I completely accept that if we start including public policy decisions within the scope of the Billalthough there are some purists who would like that to happenit would make the management of government impossible. There are financial constraints on government which mean that Governments must sometimes make decisions that have a potential impact on peoples well-being. Obvious examples include, for example, the way that the National Institute for Health and Clinical Excellence decides to ration or allocate drugs such as anti-cancer drugsan example that we have heard a great deal of in the last two or three weeksor the availability of fire engines and fire appliances, and whether one can meet the settled criteria for getting to a fire on time. One can think of all sorts of other examples, and not only in the field of emergency servicesI should make that clear, because they are covered by other aspects of the Bill.
There needs to be some understanding of where the dividing line lies in the activities of the public authority concerned. For example, if the Government decide that they must cut the budget of one of their organisations, many of which are listed in the schedule to the Bill, and one of the consequences is that some health and safety training previously thought to be appropriate does not take place and an accident happens on the premises, where does the fault lie? What happens if, for example, those who run the organisation concerned say, This is all very well: youre prosecuting us, but it was a decision taken ultimately by the Minister.? That is one possibility. If we exclude the Minister, the decision could have been taken by officials very high in the Department.
The amendment aims at that precise issue. The reality is that Ministers do not take day-to-day decisions about running Departments. If they do, all that I can say is God help them if they have got themselves into that mess. Equally, one picks up anecdotal evidenceI am sure that every Committee member is aware of itthat decisions taken quite low down the chain, particularly within Government, often seem to be the result of some emergency or problem that has arisen and has led to permanent under-secretaries picking up the telephone and saying that something will be done in a particular way. If that is the case, is it a public policy decision or is it a managerial decision with a direct impact? That is the question for the Committee.
The amendment is probing, because I accept that when we get to the point of public policy, if we start to prosecute people for getting their policy wrong, the rule of the judges is truly upon us. I am not sure that that is a good idea. None the less, we need to know where the dividing line is.

Gerry Sutcliffe: As the hon. Gentleman said, the amendment brings us to our first discussion on the important topic of exemptions, which I am sure we will debate fully as the Committee progresses. For the moment, I will confine myself to the specific details of the proposed amendment, in the expectation that we will discuss the wider context in due course.
Clause 4(1) deals with decisions of public policy taken by public authorities. Public authorities are defined by reference to the Human Rights Act 1998 and include Departments, local government bodies and other bodies whose functions are public, such as primary care trusts. The clause will exempt from the offence high-level decisions concerning the allocation of resources, the weighing of competing interests or the establishment of priorities. Examples might be a decision by a primary care trust not to fund a particular treatment or a decision by a local council to allocate its resources in a particular way. As those examples demonstrate, such decisions are not confined to Ministers, but might be made by a wide range of public authorities.
The amendment would have a very undesirable consequence. The courts have already recognised that such decisions taken by public authorities are not suitable for review in the courts. In most cases, therefore, no duty of care would be owed in respect of such activities. The purpose of the exemption is not to exclude activities that would otherwise be covered by the new offence, but to provide clarity about what is and is not covered.
The amendment would remove that clarity. If it were agreed to, the Bill would suggest that only ministerial decisions were exempt, although in reality a duty of care would not be owed in a much wider range of circumstances. The result would be that public authorities would not be clear about the application of the new offence in respect of public policy decisions. There would therefore be a risk of encouraging an overly defensive or cautious approach in those seeking to safeguard the public from risk or danger. We do not believe that that would be in the public interest.
The hon. Gentleman made reference to the management of resources; I must make it clear that the exemption is not about that. Once a public body has embarked on a particular activity, it must fully observe its safety responsibilities and cannot plead lack of resources as a defence. The exemption does not change that. Nor is it the case that the exemption prevents public authorities being accountable for their decisions. Public bodies often hold special authority or perform functions that the private sector does not or cannot do on its own account. Due to that and the fact that such bodies operate on behalf of the public, they are already subject to a strong and public framework of accountability, such as public inquiries and other independent investigations.
Clause 4(1) makes it clear that public bodies will not be liable for their decisions that are underpinned by considerations of public policy. The issue is not confined to ministerial decision making. I hope that, with that clarification, the hon. Gentleman will withdraw his probing amendment.

Dominic Grieve: Yes, I shall ask leave to withdraw my amendment, but I leave the Minister with one thoughthe may want to write to me about it. I do not claim huge expertise in the field of judicial review, but it seems to me that the Minister is right to say, as a generality, that the courts have refused to interfere with public policy decisions. When he identified that as the dividing line, that had resonance for me and made sense.
I wonder whether the Government have thought about one issue. As the Minister knows, the concept of areas in which courts are prepared to interfere is flexible and can develop over time. For example, the Human Rights Act 1998or rather the European convention on human rights, which the 1998 Act did no more than incorporateprovides for a right to life. One need only read academic treatises by academic lawyers nowadays to note that there is considerable speculation about the extent to which that right is starting to raise obligations on the state to maintain life, as opposed to imposing prohibitions on taking it except in certain circumstances. Those very decisions are often public policy issues, into which, as the Minister rightly said, the courts refuse to stray. However, I do not think that we can entirely rule out the notion that we might find them moving into such areas.
We are already on that cusp in relation to matters such as the withdrawal of treatment to people who are dying, even when the issue under consideration is not euthanasia but the point at which one need not strive officiously to keep alive. The tendency may be widened over time. If the courts start saying that, under the 1998 Act, judicial review might intrude into such areas, would it follow that such areas would be removed from the public policy sphere and that Government Departments or public authorities would be open to prosecution for corporate manslaughter?
The Government may have already carefully considered that point, but it would be useful to have a response as to the way in which they envisage the provision working before this Bill goes on the statute book. Would a court decision, so removed from the field of corporate manslaughter that it could look at a particular area of Government policysuch as in the operation of the European convention on human rightshave the immediacy of triggering, as a consequence, a duty under this Bill?

Gerry Sutcliffe: If what I am about to say does not help the hon. Gentleman, I will do as he suggests and write to him with the detail. The Bill does not link the exemption to circumstances in which the civil law does not apply, but it recognises the same principle. The courts will determine the limits of the exemption in the light of our human rights obligations.

Dominic Grieve: That is helpful. If the Minister would like to amplify his remarks in a letter, that would also be helpful. On that note, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Dominic Grieve: I beg to move amendment No. 45, in page 3, line 26, leave out subsection (2).

Joe Benton: With this it will be convenient to discuss amendment No. 46, in page 3, leave out lines 33 to 37.

Dominic Grieve: There might be some repetition of the previous debate in our discussion of these amendments. Amendment No. 45 would delete the lead subsectionsubsection (2)of clause 4 and amendment No. 46 would delete the definitions of exclusively public function. It would drive a coach and horses through clause 4 and is intended to tease out from the Government what the consequence of that would be. We might have touched on that already but I do not need to amplify it further. If the Minister has any further comments on this probing amendment, I would be grateful to hear them.

Tony Lloyd: Given that the amendment is probing, I ask the Minister to address the following points. We are talking about the exercise of an exclusively public function and its exemption from the lawunless it falls within the categories set out in clause 3(1)(a) which refers to
a duty owed to... employees
and persons who are in quasi-employment positions, and in clause 3(1)(b), which refers to:
a duty owed as occupier of premises;
May I take it for granted that there is a precise analogy with health and safety legislation in which members of the public are protected, because that is a duty owed as an occupier of premises? The duty to the public in that provision is clear and is not excluded by the impact of clause 4(2). That must be the case, but I would be grateful if the Minister would again make it clear to the Committee that it is.

Gerry Sutcliffe: I will try to help my hon. Friend the Member for Manchester, Central. If I do not, I am sure that he will return to the points that he has raised.
As the hon. Member for Beaconsfield said, we have touched upon this subject in previous debates, but I should deal with it in the context of the Government lifting Crown immunity. The new offence will apply to Crown bodies. Criminal accountability will extend to their management and organisation for the first timea significant step. That is no small achievement and it shows that where private and public sector bodies are engaged in similar activities, there will be a level playing field under the new offence. That has been widely welcomed by industry and trade unions alike. However, it raises difficult questions about when Government and public bodies should be accountable in the criminal courts for the way in which they carry out their activities.
The exemption for an exclusively public function goes to the heart of the debate. It is important to recognise that the offence is rooted in the need for employers to provide safety in the workplace, to ensure that employees have safe systems at work and that work sites are safe places to be. The Bill applies widely to the responsibility that the Crown and other public sector bodies have as employer and occupier. The exemption expressly does not override those duties. The adequacy of the carrying out of those functions is therefore relevant.
In our view the purpose of the offence is not to establish new ways of holding the Government to account for the way in which they meet their public responsibilities. The exemption therefore deals with activities that fall within the Crown prerogative, or that are of the type necessitating state authority. We believe that those are intrinsically public functions, and their management and organisation will frequently be closely linked to questions of public policy, so that they are more appropriately subject to wider forms of accountabilitypublic inquiries and independent investigationsthan to the accountability that can be achieved under the criminal law.
The exemption covers activities carried out under the prerogative, including activities at the heart of state responsibility, such as Government provision of services in a civil emergency. It also extends to activities that by their nature require statutory authority. It does not include activities merely because they are carried out on a statutory basis, however; the activitys nature must be such that it can be carried out only with state authority. For example, the NHS provides medical services under a statutory framework, but medical treatment is not an exclusively public function; there is nothing intrinsic to medical treatment that requires statutory powers, and private organisations can offer medical treatment independently. Examples of exclusively public functions are the licensing of drugs, the issuing of driving licences and the granting of planning permission. Exemption does not cover activities merely because a licence is required to perform those activities, however[Interruption.]

Joe Benton: Order. I am sorry to interrupt the Minister but could someone establish what is going on outside the room? It sounds to me like a fire alarm. In the meantime, let us proceed and wait for news to be brought.

Gerry Sutcliffe: Watching television in this country requires a licence, but that does not make it an exclusively public function. Only an activity that by its nature requires statutory authority is covered by the relevant limb of the exemption. The phrase by its nature is intended to focus the test on the core part of the activitythe public functionand the exemption does not extend to activities that are ancillary to that function. Keeping people in custody is intrinsically a public function, but secondary activities such as providing catering to prisoners or responding to their health care needs are not exclusively public functions and would therefore be within the scope of the offence whenever duties of care arose.
The exemption does not override duties of care owed by an employer or occupier. An authority that otherwise benefited from the exemption would still be under a duty to provide safe systems of work for its employees and to ensure that its premises were maintained in a safe condition. If the authority committed a gross breach of either duty, it would be liable to prosecution for corporate manslaughter. That is the overall picture.

Tony Lloyd: I suspect that I am being troubled by something that is not really an issue, but let me put to the Minister a point relating to the comparison with the Health and Safety at Work, etc. Act 1974.
It is clear that organisations owe a duty of care to their employees and, as the occupiers of premises, to the wider public who may enter the premises. They also owe a duty of care to the passing public in the operation of their working activities. On a narrow interpretation of the Bill, it seems that the duty of care is owed specifically to employees in some areas, and that there is a general duty of care as an occupier. Will the Minister clarify, possibly at a later stage, by analogy with the 1974 Act that the public are specifically covered if they are on premises in the vicinity of the operation of work?

Gerry Sutcliffe: I want to reassure my hon. Friend, but it would probably be better to write to the Committee; if we need to return to the subject we can easily do so. I am told that the public and premises are covered by the occupiers duty, but my hon. Friend wants to be reassured, so I shall set it out in letter form. Committee members will thus be able work out whether they want to pursue the matter further.
As I tried say in a detailed response to the hon. Member for Beaconsfield, the courts have shied away from imposing duties of care in relation to the exercise of many activities that are exclusively public functions. Amendments Nos. 45 and 46 would result in a lack of clarity about whether such activities were covered and whether they should be considered by the courts. That in itself may leave the bodies carrying out those functions uncertain about whether they were covered, which could encourage risk-averse behaviour. We should not take that risk lightly: public authorities often find themselves in a difficult position when seeking to protect others from harm. We would not want the fine balance needed in decisions such as taking children into care to be swayed by fear of prosecution. That would not be good for children or for families.
I hope that I have reassured the Committee about public functions. I know that we will want to discuss some aspects further, but I hope that the hon. Member for Beaconsfield is prepared to withdraw the amendment.

Dominic Grieve: I am grateful to the Minister, but he may have detected from the brief way in which I opened the debate that, in all honesty, I find it a difficult matter. Above all, I want clarity as to what the Government intend, and the Minister has been helpful in providing that. However, some difficult issues remain.
The Minister cited the example of children being taken into care. It is something that I know of from personal experience. I sometimes have serious anxieties about the manner in which children are taken into care by local authorities, and the treatment that they subsequently get once they are in care. Indeed, children are sometimes killed when in care, and it is not unusual for public authorities to be criticised for being negligent in allowing that to happen.
In the context of the Bill, that raises some interesting questions, as the Minister will appreciate. He is saying that although there might be a possibility of prosecuting an individual social worker for manslaughter because of gross negligence, there would be no possibility of prosecuting a local authority for those of its public policy decisions that might arguably have brought about the situation. That may be so, notwithstanding the fact that there might be scope for the public authority to be sued for negligence at civil law, even though no criminal prosecution would occur. That may be another key area upon which the Committee will want to reflect.
I shall withdraw the amendment, but I must tell the Minister that this is one of only a couple of areas in which, as a result of his comments, I intend to do a lot more thinking, particularly on whether Parliament might wish to impose higher duties or at least the possibility of criminal sanctions for failure. However, I have to accept what he saidthat once we move down that road, the shift to risk-averse decision taking in areas that are inherently difficult could become very real.
I certainly do not wish to put an excessive burden on groups of individuals who on the whole will be trying to make decisions for the best in areas where one often cannot easily come to the right decision. With that in mind, I shall go away and think about the Ministers answers; and we can return to the subject on Report if necessary. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 4 ordered to stand part of the Bill.

Clause 5

Military activities

Jo Swinson: I beg to move amendment No. 126, in page 4, line 2, leave out in preparation for, or.

Joe Benton: With this it will be convenient to discuss amendment No. 127, in clause 6, page 4, line 27, eave out in preparation for, or.

Jo Swinson: It is great to see you back in the Chair, Mr. Benton. I am pleased to continue the discussion on exemptions. Amendment No. 126 deals with clause 5 and the military, and amendment No. 127 deals with clause 6 on policing and law enforcement.
It is uncontroversial to state that some exemptions from the Bills scope will be necessary, particularly in relation to the military and policing. In training of a hazardous nature and dealing with terrorism, problems with public disorder and civil unrest, there will clearly be risks to members and employees of our armed forces and policing authorities. Those risks will be unpredictable and it is not possible to foresee all eventualities. Some exemptions are needed so that those people can carry out their general duties. However, my problem with clauses 5 and 6 is to do with whether routine training will be exempted.
Amendments Nos. 126 and 127 serve similar purposes in relation to the military and policing respectively and would remove the words in preparation for, or from clauses 5(1)(b) and 6(1)(b). We want that paragraph in both clauses to say, activities carried on directly in support of such operations, so it is clear that routine training would not be covered and would thereby exempted from the provisions. Training environments need to be created so that those serving on the front line for us can experience simulations of the real risks that they may face when doing their job. However, training exercises must be sufficiently well planned so that they do not lead to the tragic consequence of death.

Michael Fabricant: My hon. Friend the Member for Beaconsfield has spoken about his experience in the court room. I can talk about my experience having a petrol bomb thrown at me during training for riot police officers. If I were a riot police officer going into such a situation, I should not like to be on the streets having a petrol bomb thrown at me if I had not encountered it under controlled conditions. If that were stopped as a consequence of the hon. Ladys amendment, it would weaken police forces ability to control difficult situations in reality.

Jo Swinson: In that case I must clarify my remarks. Clearly, it is not pleasant for people to have petrol bombs thrown at them wherever they are, but if it is going to happen they would prefer that it had occurred previously in controlled circumstances. However, in a training scenario the proper precautions must be taken, including protective clothing being worn, and all the different consequences must be thought about, including what could go wrong and what might cause death or injury. If death occurs as a consequence of badly planned training, we need such cases to be examined by the courts and those responsible to be held to account.
The Joint Committee agreed with us, stating:
We are concerned that preparation for combat operations would encompass routine training and believe that such a wide exemption cannot be justified.
I seek some reassurance from the Minister that routine training will not be exempt and that the military and the police should still have to demonstrate that they have properly planned and thought through their training. In any such circumstances, things can still go wrong, but if the organisations had thought it all through a court would find that that had been done, whereas if training had not been well thought out and well planned, it would be relevant to the courts decision.

Gerry Sutcliffe: As the hon. Lady said, we move to the important part of the Bill. Clauses 5 to 8 set out a number of specific public functions that will not be covered by the new offence. I will pay careful attention to the concerns that have been expressed about the exemptions. We have sought to make the exemptions as tight as possible, but inevitably there are questions about their proper extent. As the detail of the clauses demonstrates, we have sought to define carefully where exemptions should apply.
Amendments Nos. 126 and 127 deal with an important part of the exemptions extended to the armed forces in clause 5 and to the police in clause 6(1). Those exemptions apply to a narrow band of operational activity, but extend across the range of relevant duties of care in clause 3, including the employers duty of care to his employees. That contrasts with, for example, exemptions covering the emergency services and, in the majority of circumstances, police forces, where the exemptions focus on the impacts of operational activities on others, but maintain liability for ensuring safe systems of work for employees.
I should focus on the employer aspect of the exemption. If public policy warrants an exemption in respect of the employers duty, it is clear that the duties owed to others would similarly fall to be exempt. As the hon. Member for East Dunbartonshire (Jo Swinson) said, the armed forces are in a unique position by the nature of their activities, often working in extremely difficult and volatile situations, in which military objectives are absolutely imperative. That raises difficult questions about the extent to which the court should later scrutinise decisions about how those objectives were secured and whether the systems that were in place for carrying out those activities were adequate. Those considerations have been recognised in the civil courts. It is now a firmly established part of civil law that a combat immunity extends to the armed forces, for the reasons that the hon. Lady described. I welcome the recognition in the amendment that in principle the armed forces should be exempt in certain circumstances.
One consequence of that is that the armed forces will not owe a duty of care where the combat immunity applies, whether or not an exemption is granted in the Bill. It is important to include that in the Bill, for the sake of clarity for the armed forces and to remove the possibility of speculative and potentially damaging prosecutions. Doing so also means that, for combat immunity, we are not exempting activities that would otherwise be covered. An exemption is based on the civil law concept of combat immunity and focuses on difficult operational conditions in combating terrorism and potentially violent peacekeeping operations. However, we do not seek to exempt the military generally and much of the day-to-day activities of the armed forces, on bases and patrolling the seas, will be covered. The hon. Ladys point about training is within that position.
We have carefully considered the proposals with service colleagues. I am satisfied that we have extended the right aspects of combat immunity to the new offence. I hope that the hon. Lady is satisfied that the point that she raised about normal, regular and well-planned training has been addressed.
To turn for a moment to the police, the exemption in clause 6 mirrors that which I have described for the armed forces. Where the police and armed forces overlap in their activities to combat terrorism and serious public disorderat times even working togetherit would be illogical for the police to have a different liability for the offence. I understand hon. Members concern about the exemption being too wide, but I believe that it is necessary.
Operations to tackle terrorism, civil unrest and serious disorder will place significant pressures on the police and may well be carried out in haste in emergency situations. The police and other law enforcers will not necessarily have the luxury of time or resources to ensure that all their obligations under health and safety have been met before attending to the situation. It would be wrong for one set of priorities to be given undue weight. We would not want the police to be slowed down in their response by undue concerns of the threat of manslaughter charges. That could be detrimental to the protection of the public at large from the serious threats.
There will inevitably be questions about exactly what is covered by the term preparatory. We do not think that it is desirable to try to spell out a list of activities in the Billan impossible taskbut that does not leave the scope of the exemption at large. Some concern has been expressed that preparation for could be interpreted very widely by the courts to cover, as the hon. Lady mentioned, training or routine maintenance of riot control equipment and so on. I hope that I have shown her that that is not the intention. We believe that the drafting is sufficiently tight. Specific mention is made of training in subsection (1)(c) of clauses 5 and 6, which deal with hazardous training.

Michael Fabricant: To return to the police, they deal with certain equipment, which the Minister mentioned. We know from todays tables that some police forces are better than othersit is worth noting that Staffordshire came top of the poll. What if a police force had a fairly slapdash way of maintaining equipment and a gas canister exploded? Surely the police force itself should bear some responsibility.

Gerry Sutcliffe: The hon. Gentleman makes that point rightly. I would say that, if there was a reasonable prospect of the event being foreseen in the general application of the forces responsibilities, the jury would have the opportunity to take that into consideration.
We have tried to take a significant step forward in taking away Crown immunity. We have tried to ensure that the exemptions are targeted and appropriate in the conditions that I have outlined. I hope that, in those circumstances, the hon. Lady feels reassured and will withdraw the amendment.

Joe Benton: Before I call Jo Swinson, I wish to notify the Committee, just to put everyones mind at ease, that I have been informed that there is a fault with the fire alarm on the first floor in the area of the Members Tea Room, which is being looked at now.

Jo Swinson: I welcome the reassurance that the Minister has given, the fact that it has been put on the record that routine training and the day-to-day activities of the military and the police will not be exempted by this measure, and the maintenance point raised by the hon. Member for Lichfield (Michael Fabricant). I therefore beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Dominic Grieve: I beg to move amendment No. 47, in page 4, line 4, leave out paragraph (c).

Joe Benton: With this it will be convenient to discuss amendment No. 48, in page 4, line 13, leave out subsection (3).

Dominic Grieve: Amendment No. 47 would leave out clause 5(1)(c), which is the paragraph on
training of a hazardous nature, or training carried out in a hazardous way.
The second amendment would leave out clause 5(3), relating to the special forces.
I shall deal first with paragraph (c). The Minister touched on this issue in his earlier response, which is why I did not intervene in that debate. I am referring to training of a hazardous nature, if it is accepted that it is necessary for the carrying out of military operations. Although I can see the attraction of excluding it from the possibility of a corporate manslaughter charge being brought, I want to raise the question of whether it is necessary to do so as distinct from
activities carried on in preparation for, or directly in support of,
military operations, which is clearly at a time when actual imperatives are taking place relating to active service.
My reason for saying that is that I question whether a prosecution could be successfully brought, provided that it were open to the Ministry of Defence to show that a proper assessment of the hazards had been made before the hazardous training took place. Although there was inherent hazard, as long as that inherent hazard had been provided for in so far as that was possible and things had been considered beforehand, we would be talking about a complete exoneration if something then went wrong.
I do not think that the Minister, in his answer to the earlier debate, quite dealt with the issue. I accept that ultimately it is a public policy decision, but why should people, simply because they decided to carry out hazardous training, be protected from a prosecution brought for gross negligence corporate manslaughter because they were in fact grossly negligent in the way in which they carried it out?
Let me give the Minister an example. There is a failure by the MOD to carry out in one location proper checks to parachutes after packing, as a result of which some parachutes fail to open and servicemen are killed. In those circumstances, if what is shown is a command structure failure in the armed forces without individual culpability, why should the Ministry of Defence escape corporate manslaughter prosecution when its systems were apparently at fault in allowing it to happen? What about abseiling off rocks when equipment has not been properly checked and the ropes fail? Those are just examples of the sort of hazardous training that the military must undergo frequently.
What is the public policy reason for exempting the military completely? I think that it was argued that by its very nature, hazardous training involves hazards, and that therefore it is wrong for the military and the Ministry of Defence to be held responsible under corporate manslaughter if somebody gets killed in the course of that sort of training. But it seems to me that that misses the point. Inherent risk can never be eliminated, but nor can anybody be prosecuted for it. The only circumstances in which I suppose that clash could happen are those in which somebody argued that a training was so hazardous that it should not be carried out at all and the Ministry said, Actually, for public policy reasons, we had to carry it out, however hazardous it might be.
There I have sympathy with the Minister. I cannot help wondering whether it would not be possible to craft an amendment that protected the Ministry of Defence from precisely that sort of assertion, but the unintendedor perhaps intended consequence of the framing of the provisions on training is such that even hazardous treatment incompetently and negligently organised and conducted is completely protected from any criminal sanction. That bothers me, because I wonder on a public policy basis whether that is the appropriate approach. I accept that there are difficulties.

Jeremy Wright: On my hon. Friends example on which he said he had sympathy with the Minister, that of hazardous training that could be carried out in only one particular way, does he agree, looking back at clause 1(3)(c), that when the jury came to consider that matter, they would have to be persuaded that there was a gross breach, on the basis that the breach fell
far below what can reasonably be expected of the organisation in the circumstances?
Would not what he describes be perfectly properly considered as part of the circumstances of the alleged breach, leaving the jury to conclude, quite probably, that there was no gross breach?

Dominic Grieve: I think that my hon. Friend is right. Of course, the Government could argue that they are entitled to protect the Ministry from even the prospect of prosecution and all the anxieties that go with it if they take the decision that a particular future military operation requires really hazardous training. We must accept the fact that in the armed forces, a great deal of hazardous training routinely takes place. Practising escapes from submerged submarines or training in the tower at Portsmouth are rather hazardous activities. I can think of many other activities that are clearly inherently hazardous, and I want to see them protected. My concern is that the protection extends much further than that to protecting the Ministry of Defence in a corporate sense from prosecution for what many would regard as a totally botched training operation.
I am trying to think of examples from the recent past. As I recollect, one case involved the aftermath of training in the escape tower at Portsmouth. On coming out, service personnel were required to run in their wetsuits. As a result of that, I seem to remember, one serviceman collapsed and died from heat stress. I think that internal inquiries took place afterwards, and changes were subsequently made to how training was carried out. I suggest to the Minister that that is an example of something that might have had a legitimate purpose but was not fully thought through, so one asks the question: is it right that we should be protecting the Ministry of Defence from prosecution?
One of the attractive features of the Bill is that precisely because the Government have taken the decision not to target individuals, we can be slightly more relaxed about the problems that it may pose to organisations. Clearly, organisations cannot serve sentences of imprisonment; they can only be fined and most cases would involve raps over the knuckles and embarrassment, which is what the Minister intends. We should not pitch the legislation in a way that leads to safety culture being put so high that the ordinary activities of the organisation are seriously inhibited. I do not want to see that happen. In the context of the military, I fully accept that we need to be careful because the truth is that hazardous training is hazardous, but neither should we go so far that we are in fact providing a complete protection against charges of serious negligence. It is all the more ironic because in different contexts there may be other laws that will still bite on organisations, such as the Health and Safety at Work, etc. Act, although of course in that context there are also exemptions for this particular setting.
I have a concern and wonder whether there is a better way of drafting the Billone which makes it impossible to question the nature of the hazardous activity, but possible to question the manner in which it was executed. That may be too difficult to draft, but the Committee and the Minister may want to consider it.
The second amendment in the group is, in a funny way, more straightforward. I am at a loss to understand why subsection (3) is in the Bill. It appears to give some special protection to the Ministry of Defence in respect of activities carried out by members of the special forces. I invite the Minister to reread subsections (1) and (2) in the quiet of the evening. They are so wide in scope that I am unable to think of a special forces activity that does not fall within the protection afforded by those two subsections. If that is the case, why is subsection (3) there? Is there something that I have completely failed to understand about the activities of the special forces that requires some extra level of protection? My comments might not be correct if we start tinkering around with hazardous training as an example, but assuming for one moment that the entirety of the rest of this clause stays intact, why are activities carried out by members of the special forces not covered by a relevant duty of care?
As the subsection is drafted, it seems that if a member of the special forces leaves his quarters at the Hereford base, goes to the top of a staircase and as he goes down, one of the treads gives way and he falls to the ground, killing himself, there is no redress against the MOD whatsoever. I cannot believe that that is what is actually intended.
Can the Minister please explain what aspect of special forces activity is not covered by the blanket protection in respect of preparation for and in support of operations and training of a hazardous nature? I know that the special forces are used for all sorts of things, some of which would be difficult to discuss in Committee, but trying to apply my mind as best I can, I find it difficult to see that those activities will not be covered by subsection (1)(a),(b) and (c).
I appreciate that there may be a problem and that it may present the Minister with a difficulty. He may wish to speak to me privately at the bottom of the staircase. However, in pure logic, something is a little odd because all the skulduggery in which the special forces are supposed to become involved seems to be covered by subsection (1)(a), (b) and (c). What is it that requires special attention? Is it the case that, as usual, someone has sent a memo round to the Ministry of Defence and received one back saying, Above all, the special forces mustnt be covered! so such matters have just been slotted into subsection (3) without any more thought? As drafted, the provision is bizarre and the Minister will have to rise to the occasion and, without betraying the national interests of the state, explain why it is there.

James Duddridge: I should like the Minister to stress test a particular case study and say whether clause 5 is sufficiently robust. He may know that half of my constituency is owned by the Ministry of Defence. However, the land that the Government privatised is leased to QinetiQ and, on that land, a number of military activities take place in respect of training and preparation for war. I believe that it would be an appropriate site for special forces to test operations prior to going into any situation. Occasionally, however, the military works alongside QinetiQ, which is a plc. I believe that on that site, which is owned by the MOD, and on more than 20 to 25 sites throughout the country QinetiQ is responsible for health and safety. I should like the Minister to deal with my concern that there will be resistance from that plc to allowing military operations to continue on the sites because the military would be immune from a corporate manslaughter prosecution, but the public company, QinetiQ, may indeed be subject to prosecution.

Gerry Sutcliffe: I fear that I may not answer the hon. Member for Beaconsfield in the way that he would consider appropriate. Clearly, there are issues in connection with the intelligence services that prevent me from going into the detail that he requires.
As the hon. Gentleman described, amendment No. 47 would remove the exemption in clause 5 for hazardous training. He accepts that it is important that our service personnel are properly prepared for the difficult and dangerous circumstances that they will face, either on the front line in combat or when undertaking peace-keeping missions in potentially hostile environments. The armed forces owe their personnel a duty of care to ensure that they are properly trained in that respect. Realistic training ensures both that soldiers can deal with difficult circumstances, reducing risks of death and injury, and that the effectiveness of troops in those circumstances is maintained.
I should emphasise that in carrying out all training, the armed forces are committed to the highest standards of safety performance and take their responsibilities to personnel very seriouslya point that has been accepted by the hon. Gentleman. Instructors are exceptionally well trained and competent, and best practice processes are always strived for. However, the best means of training for hazardous situations is to make that training as realistic as possible so that personnel are readily able to translate those pressures, experience and requirements to their operational work. For the armed forces, that will inevitably mean that elements of training are clearly hazardous.
We have considered the provisions carefully with colleagues in the Ministry of Defence. I will say that again, and the hon. Gentleman will understand why: we have carefully considered the provisions with colleagues in the Ministry of Defence. There is significant concern that bringing hazardous training within the ambit of the offence would transfer risk from the training scenario to the battlefield. Risks in training would be reduced, but servicemen would be exposed to a greater level of risk when conducting operations because they were less well prepared.
That does not translate into a need to exclude all training from the scope of the offence. As I tried to explain to the hon. Member for East Dunbartonshire, many circumstances that fall outside the scope of the criminal law because of Crown immunity will be covered in future. It might be helpful to illustrate that with some examples.
The Ministry of Defence has received a number of Crown censures for health and safety failings, some of which have involved fatalities, in the way in which training has been carried out. For example, apprentice tradesman Kevin Alan Sharman drowned in a cave in Wales while undergoing adventurous training at Sennybridge. An investigation established that risks had not been properly controlled. The Ministry of Defence also received a Crown censure about a failure to ensure the health and safety of a Royal Marine during recruit training at Woodbury Common in Devon. Furthermore, arrangements for monitoring and reviewing preventive measures were criticised in a case involving the accidental shooting of a soldier by a gun used in an improvised firing position. None of those cases would be covered by the exemption that we are discussing.
I hope that the Committee is assured that we have taken a careful approach to the issue, not sought a blanket exemption. There is a requirement for some hazardous training, or training done in a hazardous fashion. We could further mitigate the risks involved in that, but doing so would undermine the very objective of the training in the first place: to prepare troops for dangerous and risky situations. Examples include refuelling planes mid-air or replenishing ships at sea. In the normal course of events, risks could be minimised by a plane landing and being refuelled or ships docking and taking supplies on board. However, the armed forces need to practise those activities as they would be undertaken during combat operations; of necessity, that involves accepting greater risks. However, risks that are not part of the training will not be taken.
None of that is to say that the armed forces will in future take a less responsible approach to the conduct of such training. We do not want the effectiveness of training to be undermined, with consequent risks to the safety or capability of troops in operations, because commanders feel constrained by the application of the offence created in the Bill.
Amendment No. 48 would remove the exemption for the special forces. Operational activities and hazardous training for all armed forces are excluded under clause 5 in any event. However, a wider exemption is appropriate for the special forces because such units operate, train, liaise with and support the security and intelligence services. Those services are not covered by the new offence because of the inevitable difficulties that would arise in any investigation and prosecution. In particular, there would be a risk of compromising the secrecy that attaches to their work in respect of personnel, operations and operational techniques. Owing to the risks to national security, it has been widely accepted, including in pre-legislative scrutiny, that the new offence should not apply to the security and intelligence agencies. Similar considerations arise in respect of the special forces.

Dominic Grieve: I am not surprised to hear the Ministers response, but will he confirm that excluding the special forces would have an interesting consequence? Suppose, for instance, that banal and routine failures in maintaining property at a special forces base led to the death of a serviceman as he got out of bed in the morning. His death would be unrelated to training, but might be the consequence of gross negligence by the Ministry of Defence property services department. However, he would not be covered. In effect, anything unrelated to his role that happened to a member of the special forces at the hands of the Ministry of Defence could not result in the prosecution of the Ministry.

Gerry Sutcliffe: I fear that the hon. Gentleman may be right, so I shall look further at the amendment, as he has asked me to. However, he understands the general principle of why the special forces are treated in the same way as the security and intelligence agencies. With the caveat that I shall reflect on the example that he has given, I ask the hon. Gentleman to accept the spirit of why the special forces are treated as they are. I hope that he will withdraw his amendment. I shall come back to him about the scenario that he raises. I will talk to him at the bottom of the stairs about a number of issues that I have not been able to explain to him in Committee. He will know the reason for that.

Dominic Grieve: I am grateful to the Minister for his response. I shall deal with the amendments separately. On amendment No. 47, the Minister has gone a long way towards persuading me that it is probably impractical to include training of a hazardous nature in the scope of the Bill. In some instances, all that remains will be Crown censure under the 1974 Act. That will not be as a result of the provisions of the Act, because the ministry and military are exempt, but, in effect, there is a remedy, albeit one that does not lead to prosecution.
As far as amendment No. 48 is concerned, I hope that the Minister has got my point. He may be right that there is absolutely no way to put together a package that provides any sort of protection to members of the special forces. I think he can see the logical outcome of the extraordinary blanket exemption, which would also apply to the intelligence services. Presumably, if someone were to fall down the staircase at the headquarters of the Secret Intelligence Service or the Security Service, there would be no redress through prosecution, however culpable the Governments property services department might be. I can see that the prurience of the press might be entertained by the facts that would emerge in a trial, such as the extent to which a building might be in a ramshackle condition or something that might have been done that led to a failure, but it is slightly unfortunate that individualsor rather their relatives, as the individuals in question will be deadshould be left so singularly without redress for what falls so far outside the ordinary scope of secret activity.
The Minister might be right that there is no way to draft an appropriate provision, but I slightly regret that. I would have thought that there must be some way of enabling such matters to be covered while protecting special forces or the intelligence services from scrutiny in the fields of their activities. However, I shall go away and reflect on the matter, and I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 5 ordered to stand part of the Bill.
Further consideration adjourned.[Mr. Alan Campbell.]

Adjourned accordingly at twenty-eight minutes to Six oclock till Thursday 26 October at Nine oclock.